In a significant change of policy, the Union government told the Madras High Court that no proof of gender reaffirmation surgery needs to be submitted in order to change a person’s gender in their passport from male to female or vice-versa. The Ministries of External Affairs and Law and Justice made the submission at the court during the hearing of a 2019 public interest litigation (PIL) that sought the court to declare the provisions of the Passport Rules 1980 as unconstitutional for demanding surgical certificates to change gender in passports.
A bench of Chief Justice Sanjay V Gangapurwala and Justice Sathya Narayana Prasad passed the judgement in the case on April 29, 2024, in which they noted that the Union government has submitted that gender reaffirmation surgery was not required for binary change of gender in passports, that is from male to female or female to male. So far, a person can change their gender in a passport from male/female (M/F) to ‘transgender’ (T) without submitting any certificates. The compendium of instructions and/or guidelines relating to the issue of passports, updated in 2020, said that there are “rare cases” of request to change in gender in the passport “consequent to medical procedure changing sex of an individual”. While the community accepted terminology is “gender identity”, the government uses the term “sex” in its official documents.
“The applicant should give a sworn affidavit regarding the change in sex and furnish supporting certificate from the hospital where he/she underwent the medical treatment for the purpose,” the guideline said. It also said that since change in gender will be accompanied by a change in name, the applicant should follow the procedures to change their name also and passport will be issued after fresh police verification.
However, the catch is that the guideline says, “Change in sex from male/female to transgender does not require submission of any surgical reconstruction certificate. If an applicant’s claims his sex as transgender, the applicant’s claim may be accepted in good faith as it is a matter of self-identity.” The petitioner’s counsel B Poongkhulali argued that the guidelines exempt only those who want to declare themself as a “transgender person” and not those who want to change their gender in passport from male to female or vice-versa.
After the court directed the Union government to look into the provision, the standing counsel for Union submitted that gender reaffirmation surgery certificates need not be produced for change of gender from female to male or vice versa. The bench disposed of the petition after recording the statement.
Speaking to TNM, advocate Poongkhulali said that the move is significant because it elevates understanding of gender identification from a purely medical/anatomy perspective to one based on self-identification.
In 2019, LGBTQIA+ activist Sivakumar TD moved the HC to declare that the passport rules that demand gender reaffirmation surgery certificate for gender affirmation as “unconstitutional”. He also contended that it is violative of Article 21 (Protection of Life and Personal Liberty) of the Constitution. After the Transgender Persons (Protection) Act, 2019 and Transgender Persons (Protection) Rules, 2020 were passed in the subsequent years, the passport rules were changed to not demand gender reaffirmation surgery for changing from male/female to transgender. However, this was not applicable if a person wanted to change their gender from male to female or vice-versa.